IN the study of the powers and duties of the provincial governor, the first inquiry must be as to the documents in which these powers and duties are stated, the instruments through which the governor’s authority was conferred and defined. There are two classes of instruments which have more nearly than the others that quality of permanence which is associated with a rigid constitution or a fundamental law. The first class may be represented by a single instance. When New Netherland passed from the Dutch to the English in 1664, the two parties agreed upon so-called “Articles of Capitulation,” an instrument containing some important constitutional provisions. For example, it declared “That the town of Manhatans shall choose Deputies, and those Deputies shall have free voices in all public affairs, as much as any other Deputies”; another clause provided for the election of certain inferior civil officers and magistrates; and there were also provisions regarding the rights of individuals. On the whole, however, there seems to have been little here to determine the framework of the provincial constitution.¹

     The second class of instruments, the charters, are much more important; yet even these, with the exception of the Massachusetts Province Charter of 1691, are of comparatively little value for the present purpose. In the first place, the royal governments, as a rule, had no charters; the only one of any political significance was the so-called Province Charter of Massachusetts in 1691. In the two proprietary governments which survived the general wreck, Maryland and Pennsylvania,

there were, it is true, the charters to the original proprietors; but the Massachusetts charter is the only one among either royal or proprietary governments which assumes to mark out in any systematic way the form of the provincial constitution, and to define with any degree of accuracy the relative powers of governor and assembly. Nevertheless, the charters did contain certain broad limitations, imposed in the one case by the crown upon the proprietors, and in the other by the crown upon itself. It must be said, moreover, in general terms, that in the proprietary governments the proprietors delegated to their governors the powers granted to themselves by their charters. All these cases, however, may fairly be regarded as exceptional, as variations from the strict type of the provincial government.

     The main clue to a correct understanding of the powers of the provincial governor is to be found in the vice-regal character of his office. He was the agent, the representative of the crown. He succeeded, with certain necessary limitations imposed by his subordinate position, to the traditions of the royal prerogative as defined by long-standing usage and modified by the development of parliamentary control.¹ Not only did this vice-regal conception determine the provisions of the commission; it also fixed the interpretation of these provisions, or supplied a rule of action in matters concerning which the commission itself was silent. Naturally the question was constantly arising as to whether a particular power was or was not an essential part of the royal prerogative. Governors claimed, for example, that the interference of the assembly in military affairs and in appointments was an invasion of the prerogative; while the assembly, on its part, repeatedly based its privileges on the usages of the House of Commons. An interesting case in point arose from the practice of presenting the speaker to the governor for the latter’s approval. Since assent was always given as a matter of course, in England this custom had become a mere formality; and such was usually the case in the colonies. In a few cases, however, the governor

undertook to make his prerogative a reality by rejecting the choice of the House.¹

     The terms of the commission echoed the old phrases of the royal prerogative; and often old powers of the crown which had ceased to have practical meaning at home were revived in it. Thus, in accordance with the old constitutional tradition which gave the king as the fountain of justice the right to erect courts of justice, the royal commission gave the governor as the king’s representative this independent right of establishing courts.

     With this fundamental principle in mind, the main features of the commission may be easily summed up. The king was the fountain of honor and privilege, and had thus the right to create offices and to fill them: therefore the provincial governor had the right to appoint all officers. The king was commander-in-chief of the army and navy: the governor was captain-general of the provincial military forces, as well as vice-admiral. The king, by virtue of his prerogative, might prorogue and dissolve Parliaments, although this power was limited by the triennial and septennial acts: the governor’s commission, however, conferred it without limitation. The king had the right of legislation in conjunction with the two houses of Parliament: the governor was empowered to make laws with the consent of the council and assembly. The similarity is even more striking in minor points. The governor, like the king, had in theory the right to grant charters of incorporation to cities and towns, and to establish ports, markets, and fairs; he had the right of pardon, except for treason and felony; and in ecclesiastical matters he had certain rights of appointment to benefices. The character of the governor’s office as drawn in the commission is thus clearly vice-regal.

     Besides the commission, a set of instructions was given to each governor on his appointment, and these were supplemented from time to time by so-called “additional instructions.” The two documents taken together formed what may be roughly called the constitution of the province; they were drafted by

the Board of Trade, receiving their final sanction through orders in council.¹ As to the distinctive characters of these two documents respectively, it may be said, in the first place, that the commission was an essentially public document, while the instructions were not. The commission was published at the accession of the governor, and was generally inscribed on the council books.² The instructions, on the other hand, were not regularly published, though it would appear that in Virginia it was at first customary to publish them, and that the discontinuance of the old usage was considered a grievance.³ The governor was, however, directed to communicate to the council those clauses which had to do with matters in which its consent was necessary, together with such other articles as he might think fit for the information of the council and assembly.⁴ The instructions thus given out were usually articles bearing on controverted points or limiting the governor’s assent to certain kinds of legislation.

     The commission contained the grant of power, while the instructions told how that power should be used and often limited its scope. For example, the commission empowered the governor to act with a quorum of three councillors: the instructions required a quorum of five, except in emergencies. The commission authorized him to appoint judicial officers: the instructions made necessary the advice and consent of the council for the making of such appointments. The commission authorized him to erect courts: the instructions usually forbade the erection of new courts without special warrant from the crown. Finally, the commission empowered him to make laws in conjunction with the council and assembly: the instructions forbade him to assent to certain classes of laws.

     An interesting question arises here as to the exact legal effect of action taken by the governor within the lines of his commission but in violation of his instructions. A case in point occurred in 1762. Governor Hardy of New Jersey was

authorized by his commission in general terms to appoint judges and other officers for the administration of justice. His instructions, however, expressly directed that the duration of such appointments should not be during good behavior but subject to recall at pleasure. In spite of these directions, Hardy, on his arrival in the province, appointed three judges of the Supreme Court, with commissions authorizing them to serve during good behavior; whereupon the validity of these commissions was questioned and the matter was referred to Attorney-General Yorke for his opinion. That officer held that the judges’ commissions were illegal and invalid, on the ground that, although the power conferred by the governor’s commission was general, yet since the instructions, which restricted his authority, were referred to in the commission, they must be regarded as incorporated into the latter document and hence as limiting the power conferred by it.¹

     It has been said that the commission and instructions may together be regarded as the constitution of the province. Thomas Pownall, one of the ablest students of colonial administration, and himself at one time governor of Massachusetts, claimed for the royal commission something of that fixity and permanence which mark the so-called rigid constitutions of our own time. “This the King’s commission,” he writes, “is barely a commission during pleasure, to the person therein named as governor, yet it provides for a succession without vacancy, or interregnum, and is not revoked but by a like commission, with like powers: It becomes the known, established constitution of that province which hath been established on it, and whose laws, courts, and whole frame of legislature and judicature, are founded on it: It is the charter of that province: It is the indefeasible and unalterable right of those people . . . and therefore not to be altered; but by such means as any reform or new establishment may take place in Great Britain: It cannot, in its essential parts, be altered or destroyed

by any royal instructions or proclamation; or by letters from secretaries of state: It cannot be superceded, or in part annulled, by the issuing out of any other commissions not known to this constitution.”¹

     It is probable that this was a prevalent view among the colonists themselves, though its strict legal accuracy may perhaps be open to question. It must be said, also, that the commissions and instructions were remarkably free from arbitrary alterations. There was, it is true, a development from simplicity to complexity, from the extremely vague and general terms of the early commissions to the elaborate and fairly accurate definition of powers found in the commissions and instructions of the royal governors toward the close of the colonial period. This progress is palpably marked by the striking increase in the length of these documents, as seen by contrasting the first brief royal commissions in Virginia after the overthrow of the London Company with the formidable commissions of the next century, accompanied as they were by instructions like those to Governor Dobbs in 1754, which contained more than a hundred articles. During the last century of provincial government, however, this expansion was mainly in the direction of a more accurate definition of powers previously given, together with a few further limitations imposed upon the governor’s freedom of action. The commission of a new governor in Massachusetts or New York differed very slightly, if at all, from that of his immediate predecessor; and such changes as were made usually calve about gradually, and did not seriously affect the stability of the provincial constitution.

     In addition to the set of instructions given to the governor on his assignment to a province, he received from time to time other instructions, some of which had a permanent character and were thus likely to be included in the regular set of instructions to the next governor, while others were merely orders and directions intended to serve temporary ends. These additional instructions might take the form either of orders in council, or of instructions from the Board of Trade or the

secretaries of state. The instructions relating to trade formed a distinct body of articles governing the conduct of the governor as the agent of the home government in the enforcement of the navigation laws.

     But these were not the only instruments that defined the governor’s powers or imposed duties upon him. He had further to govern “according to such reasonable Laws and Statutes” as might be enacted by the provincial legislature.¹ These laws might, and frequently did, conflict with the directions of the royal commission or instructions, and many of them were disallowed for that reason; but a still larger number—such as those providing for appointments by the assembly, or interfering with the management of military operations, or containing provisions inconsistent with those instructions which limited the governor’s assent to bills—were passed and went into operation. This result came about partly because in many cases the acts were merely temporary, partly because they were not noticed, and partly also because the assembly was strong enough to have its own way. Such acts, though often disallowed, do not seem to have been ordinarily regarded as ipso facto null and void because they were in conflict with a fundamental law.²

     The governor’s authority was also modified to an important extent by local usages of various sorts. Irregularities once weakly or inadvertently acquiesced in gradually became too deeply rooted to be disturbed, and often resulted in a serious diminution of the governor’s powers. Finally, with the development of parliamentary control over the colonies, another element arose which must be taken into account, namely, acts of Parliament conferring privileges and imposing duties upon the provincial governors. Such provisions appear in the navigation acts of the reign of Charles II., and they were extended

by statutes of William III. and later sovereigns. In general, these acts imposed upon the governor the duty of cooperation in the enforcement of the navigation laws.¹

     Of these various instruments by which the governor’s powers were either conferred or defined, the most important were the commission and the instructions, interpreted by the analogy of the royal prerogative and modified by usages springing up in each province. Before leaving this subject and proceeding to a discussion of the particular powers granted and defined in these ways, it may not be out of place to quote the quaint phraseology of a contemporary writer, probably James Glen, once a royal governor of South Carolina. He writes: “The Governor is appointed by Patent, by the title of Governor in Chief, and Captain-General in and over the province; He receives also a Vice Admiral’s Commission: But alas! these high sounding titles convey very little Power, and I have often wished that Governors had more; I cannot, however, help making this disinterested Remark, that though a Virtuous Person might be trusted with a little more power, perhaps there may be as much already given, as can safely be delegated to a weak or a wicked Person; and considering, that such may in ill times happen to be employed, a wise and good Prince will therefore guard against it.”²

     Historically one of the first departments of executive power to assume prominence was the military power, the command of the armed forces of the State. By the English constitution the king was regarded as the commander-in-chief of the army and navy; he had the sole right to raise armies and fleets and to regulate them; it was his prerogative to establish and garrison forts and other places of strength.³ In this, as in other matters, the governor was the king’s representative. His commission authorized him, either directly or through officers of his appointment, to arm, muster, and command all persons

residing within his province; to transfer them from place to place; to resist all enemies, pirates, or rebels; if necessary, to transport troops to other provinces in order to defend such places against invasion; to pursue enemies out of the province; in short, to do anything properly belonging to the office of commander-in-chief. These powers were to be exercised by the governor independently. Furthermore, he might, with the advice and consent of the council, establish fortifications and furnish them with supplies;¹ and in time of actual war he might also with the council’s consent execute martial law.²

     Similar powers were given to the proprietors of Maryland and Pennsylvania. The proprietor of Maryland, for example, was authorized to execute all powers properly belonging to the office of captain-general; to summon to his standards all the inhabitants of the province; to wage war; and to execute martial law.³ The Massachusetts charter of 1691 conferred like powers upon the new royal governor, but with two important restrictions, namely, that the governor was forbidden to take men out of the colony without the consent of the General Court or without their own free consent, or to execute martial law without the approval of the council.⁴

     The governor was thus the head of the provincial military system, with the right of appointing subordinate military officers, and also of calling upon all inhabitants for military service in the defence of the province or in the suppression of rebellion. He was not, however, permitted by his instructions to declare martial law except in time of war, and then only with the advice and consent of the council.

     In practical operation, however, the scope of the military powers of the governor was far from being as large as the terms

of the commission would indicate. Even if the governor’s powers as thus defined received the fullest recognition, they must have been quite useless without financial support from the assembly, a support which was often grudgingly and uncertainly given.¹ Moreover, some positive limitations were imposed either by law or by custom, as, for example, in the instance already noticed regarding the clause of the Massachusetts charter which required the consent of the General Court for the transportation of troops out of the province. The same principle, though not similarly embodied in the fundamental laws of the various provinces, seems to have been insisted on by other provincial assemblies.²

     Furthermore, the right of the provincial governor to command the military service of the citizens and to maintain proper discipline depended largely, even for its legal sanction, upon acts of the assembly, which were known as the militia laws. The general character of this legislation may be sufficiently indicated by citing as an example the Georgia statute of 1755. This law provided, in the first place, for the enlistment of all males between the ages of sixteen and sixty, and authorized the governor to issue orders regulating the number of men in each company. It fixed penalties for neglect of

military obligations by officers or men. It authorized the governor, in case of invasion or insurrection, to raise, with the advice and consent of his council, as many regiments as he might consider necessary and march them to such places within the province as he might think fit. It gave him authority also to draft men and to impress boats and arms.¹

     The assemblies realized the importance of this method of holding the governor in check, and often pushed it to an extreme point, requiring the governor, as a rule, to depend upon temporary acts for the enforcement of the simplest military obligations. Terms of one, two, and three years were commonly set for the duration of these militia acts.² Some of the colonies remained for long periods of time without any militia law, or at least without any which was effective. In North Carolina it was only after several years of unsuccessful effort on the part of the governor that the assembly was finally persuaded to pass satisfactory measures.³ When the acts were of short duration, it was often difficult to secure regular renewals. In 1752, for example, Governor Clinton of New York complained that for four years the assembly had neglected to pass the regular annual militia law.⁴ In New Jersey, as well as in Pennsylvania, the Quaker influence was a source of embarrassment.⁵

     These were not the only ways in which the assemblies showed their jealousy of the governor’s military powers. An interesting illustration of the kind of opposition which a governor had to meet in the conduct of military operations is to be found in

the conflict between Governor Sharpe and the Maryland assembly during the French and Indian War. The governor wished to collect troops for an expedition to the westward, claiming that he was empowered to do so both by his commission and by an act of 1715, which, as he held, was still in force. The assembly denied both of these propositions, and moreover insisted that the act in question applied only to cases of actual invasion. The governor, on the other hand, maintained that there was a state of invasion; whereupon the assembly argued that, although there had been incursions, there had been no invasion, a distinction which the governor characterized as nothing but a quibble. The assembly held that the mere apprehension of an invasion was not a sufficient ground for marching the militia; while the governor very naturally insisted that such an interpretation would prevent him from taking action until the enemy might be in the heart of the province.¹ To illustrate popular opinion within the province, Governor Sharpe cites the proposal of Hammond, a leading member of the assembly. This gentleman proposed merely to “recommend” the people of the province to supply themselves with arms and to learn how to use them, saying that, in his opinion, anything more than such a recommendation would “abridge the Liberty, to which as Englishmen they have an inviolable Right.”²

     The Pennsylvania militia law passed in 1755 was characterized by Governor Dinwiddie of Virginia as a “Joke on all military Affars,”³ and was finally disallowed by the home government because it provided for the election of officers by ballot and failed to fix proper penalties for neglect of military obligations.⁴ Occasionally in times of pressing danger the assembly

saw the necessity of giving the governor a looser rein;¹ but the tendency was rather to tie up the appropriations so closely as to limit his freedom of action as far as possible. It will be seen later that this process was carried so far as to deprive the governor of his legitimate executive functions.

     In a consideration of the militia, as in other departments of the colonial government, the double character of the governor must be kept in mind. He was the head of the provincial administration, but he was more than that: he was the agent of the crown, charged with the maintenance of its interests in America; and consequently, in the discharge of his duties he was often led beyond the limits of his own province. In some instances royal governors were invested with a certain control of the militia of the neighboring charter colonies: for example, Governor Phips of Massachusetts was put in command of the militia of Rhode Island and New Hampshire, and Governor Fletcher of New York in command of the Connecticut militia. Both of these cases, however, may fairly be regarded as exceptional; and ultimately the charter colonies asserted successfully their independence in this as in other departments of government.²

     Nevertheless, the governor did have an important part in the general military operations carried on by the crown in America. As early as 1687, Governor Dongan received a royal letter directing him to defend the Indian allies, to demand satisfaction from the governor of Canada, and to call on the other provincial governments for assistance.¹ In 1692, Governor Fletcher, then of Pennsylvania, was directed to assist the governor of New York with troops, and to agree with the governors of New England, Maryland, and Virginia about the quotas required from their respective colonies.² A circular letter of the year 1754, sent to the governors of the different colonies, shows fairly well the sort of cooperation expected. The circular begins with an account of the military preparations then making, and proceeds with instructions to the governors to take proper measures for collecting troops. They were to provide stores, to aid the royal officers in their movements, to enforce the orders of the latter, to secure adequate appropriations from their assemblies, and finally to confer with the royal officers and with the other governors in regard to the general plan of operations.³ In response to these directions, the governors of North Carolina, Maryland, and Virginia arranged

a plan for the Ohio expedition, with Governor Sharpe of Maryland as commander of the combined forces.¹ The governor most prominent in this line of activity was Shirley of Massachusetts, who held at one time the chief command of all the forces in America.² Governor Sharpe of Maryland was conspicuously active in the same way, as was also Governor Dinwiddie of Virginia.³

     The same difficulties which the governor had to meet in conducting the military administration of his own province of course made themselves felt with additional force in this broader sphere of activity. Popular jealousy of the governor was reinforced by the strongly-marked spirit of local selfishness then prevalent among the colonists; and furthermore, as has been already shown, there was in the provincial assemblies a strong opposition to any extended plan of military operations beyond the lines of their respective provinces.

     In this study of the governor’s military functions, it has been found, first, that he was the commander-in-chief of the military forces of the province, charged with its defence and authorized by his commission to demand the military service of its inhabitants; secondly, that he was intrusted with important responsibilities in connection with the general military operations of the crown in America; and, finally, that in both of these directions he was closely dependent upon the assembly, not only for supplies, but also for the legal machinery necessary for the enforcement of his military authority.

     Besides being commander-in-chief of the provincial forces, the governor had also the title of vice-admiral, though this name carried with it very little real power, inasmuch as the colonies had of course no naval establishments worth mentioning. The governor’s admiralty powers, as defined in his vice-admiral’s commission, gave him authority to collect the

royal admiralty dues and to punish all offenders against maritime law; and for these purposes he was to maintain and supervise admiralty courts and to appoint all necessary subordinates. He might issue commissions to ships’ officers authorizing them to execute martial law on board their vessels, and he might also grant letters of marque and reprisal, though this latter right was closely limited and could not be independently used except against powers at war with Great Britain. When war had actually broken out, such commissions to privateers were usually issued on the governor’s warrant by the judge of the Admiralty Court, who was an appointee of the crown. The governor was also brought into direct relations with the royal naval officers, to whom he was directed to give due assistance.¹

     One of the usual functions of the executive in any constitution is that of representing the State in its relations with other States, that is to say, in the department of foreign relations. This function was one of the prerogatives of the English crown. Blackstone says: “With regard to foreign concerns, the king is the delegate or representative of his people. . . . What is done by the royal authority, with regard to foreign powers, is the act of the whole nation.” As a consequence of this principle, the king had the prerogative of war and peace, the sole right of sending and receiving ambassadors and of making treaties with foreign States and princes.² It is, of course, at once clear that this principle, if applicable to the governor at all, could be so only in an extremely limited sense, inasmuch as the provincial governor was not the head of a state. The province, if it might be regarded as a state in any sense, was clearly a dependent one, having no relations with other states except through the medium of the home government.

Nevertheless, each colony had two important kinds of external relations, to which may be applied in a rough way the principle already stated. These were its relations with the Indian tribes on its frontiers and with other colonies.

     The statements of the two proprietary charters in regard to external affairs may first be considered. The Maryland charter referred to the proximity of barbarous tribes, and simply gave the proprietor power to make war against such enemies of the province.¹ The charter to William Penn contained a similar article, preceded, however, by another which expressly denied the right of the proprietor to maintain any correspondence with states at enmity with the crown or to declare war against friendly states.² This article, considered in connection with the absence of any clause in the Maryland charter conferring the right of making war and peace, appears to give evidence that the proprietors had no independent authority other than the mere right of protecting themselves from attack.

     The case is still clearer when the position of the royal governor is considered. Obviously, the subordinate officer of the crown could not have the power to involve the state in war or to conclude any authoritative peace, —a plain inference, which is supported by the terms of the royal instructions. By one of his instructions the governor was authorized to take temporary action, with the advice and consent of the council, in matters not covered by his commission; but there was a proviso that he was not under any circumstances to declare war, except against the Indians in case of emergency; and even in such cases immediate notice was to be given to the home government.³ To show that this exceptional power of declaring war was not only granted, but was actually used in a number of instances, two or three examples will suffice. Thus in 1722

Governor Shute of Massachusetts, with the advice of his council, issued a declaration of war against the Indians, and in 1755 Governor Shirley was formally requested to do the same.¹ In 1745 the governor and council of New Hampshire also agreed upon a similar declaration of war.²

     The commission and instructions contained no distinct grant of power to make treaties; the governor was simply told in somewhat vague terms to maintain a good correspondence with the Indians.³ That treaties were frequently made by the governors, however, is proved by abundant examples, one of which is seen in the case of Governor Glen of South Carolina, who in a letter of the year 1746 describes his circuit among the Indian tribes for the purpose of negotiating with them.⁴ In 1749 and 1754 Indian treaties were also negotiated by the governors of the provinces of New Hampshire and Massachusetts.⁵ When these cases and others that might be cited are borne in mind, together with that clause of the governor’s instructions which authorized him, in matters not covered by his instructions, to take action with the advice and consent of his council, it is clear that the governor with the council had in this lower plane the treaty-making power.⁶ Nevertheless, it should be said that toward the close of the colonial period the governor’s sphere of activity was limited by the appointment of special

royal agents for Indian affairs, and later by that of a general superintendent of Indian affairs.

     The governor was also the natural representative of the province in its relations with other colonies. It has been seen that, in the general system of military operations in the country, the governors were necessarily brought into close correspondence with each other; and also that in the closely related department of Indian affairs the colonies were led into similar communication and correspondence, conducted usually by the governor, though often on consultation with the assembly.¹ Among the most common subjects of negotiation among the different colonies were various questions relating to boundaries. At first such negotiations seem to have been left to the governor;² but gradually there grew up a custom of referring them to commissioners chosen by the assemblies, a method which was distinctly recommended by royal instructions of the year 1730.³

     In conclusion, then, it may be said that, although the governor had little or nothing to do with what may properly be called foreign affairs, yet he was the natural representative of the colony in its external relations. He had a limited power of declaring war against the Indians, and he might make treaties with them, though in both these cases the consent of the council was required. He was also the natural representative of his own province in its dealings with other provinces, though even here his activity was limited to a certain extent.

by the participation of the assembly through its election of commissioners.

     Another essential part of the royal prerogative was the appointing power. The king was the fountain of honor and privilege, with the right to establish offices and to dispose of them;¹ and this essentially executive power was naturally intrusted to the provincial governor. Both the Maryland and the Pennsylvania charter conferred it in express terms upon the proprietor, who may be regarded as the governor-in-chief of the proprietary province. The Maryland proprietor was empowered to appoint judges, magistrates, and other officers “of what kind, for what cause, and with what power soever,” whether on land or sea;² and similar authority was given to William Penn and his heirs.³ The Massachusetts charter of 1691 gave the governor somewhat more limited powers, allowing him to appoint judicial and military officers, but requiring that important administrative positions be filled by the General Court.⁴ The royal commissions conferred the right of appointment under two separate heads, providing first that the governor have the right of naming military officers, a natural part of his prerogative as commander-in-chief; and secondly that, in consequence of his general obligation to maintain courts and enforce the law, he should have the right to appoint civil officers of various sorts.

     The authority to name military officers was so plainly a matter of course that it was generally admitted. Moreover, in this class of appointments the governor was independent, being required by neither commission nor instructions to ask consent of the council. This independence was, however, a natural consequence of the peculiar character of military command, with its necessity for a concentration of authority.⁵ Nevertheless, in Pennsylvania an effort was made to limit

somewhat this power of independent appointment by a provision of the militia act, which required the election of officers by ballot. This obnoxious provision, however, led to the disallowance of the act of 1755.¹

     The appointment of civil officers is a subject of much more importance. The governor’s commission empowered him to appoint judges, justices of the peace, sheriffs, “and other necessary Officers and Ministers . . . for the better Administration of justice and putting the Laws in Execution.”² This power of appointment appears to have been at first unlimited; the only restriction imposed was the direction “to take care” in the nomination of the principal officers to select “men of good life,” of “good estates and abilities,” “well affected to Our Government,” and not “necessitous people, or much in debt.”³ The power of removal was given in terms almost as liberal; the governor was merely forbidden to make removals without good cause, a statement of which was to be duly submitted to the home government.⁴ Soon, however, it was felt that additional safeguards were necessary, particularly in order to secure proper judicial appointments; whereupon the rule was made that commissions to judges and justices of the peace should be issued only with the advice and consent of the council.⁵ In 1754 the Board of Trade declared that the rule of concurrent action by the council, though plainly implied in previous instructions, had not been strictly adhered to; consequently the governor was then bound, in more specific and

unmistakable terms, not to appoint judicial officers without the advice and consent of at least three councillors signified in council.¹

     After this glance at the formal provisions of the commission and instructions, the actual practice of the different colonies may well be examined. In the first place, the concurrent action of the council in appointments was so fruitful a source of controversy that it is difficult to lay down any general rule applicable to the practice of all the colonies. On the one hand, the council sometimes undertook to assume undue control. Thus in Massachusetts the actual nomination of officers was at first left in the hands of the council, from which it was finally wrested with considerable difficulty.² In North Carolina also the records show that, during the period of the royal government, justices and sheriffs were regularly appointed and removed by orders in council.³ On the other hand, the governor was restive under restrictions of any kind. For example, in 1711, Governor Spotswood of Virginia complained of an “unreasonable “proposal of the assembly to make the consent of the council necessary in appointments.⁴ Again, in 1730, Governor Belcher of New Hampshire informed his council that the nomination and appointment of officers belonged to him, but that he was willing to listen to the objections of the council and to give them due consideration;⁵ and afterwards, when governor of New Jersey, he took similar ground.⁶ It is clear that the more specific directions of 1754 were needed.

     The amount of patronage thus placed in the governor’s hands varied in the different colonies. In Massachusetts many of the important officers were appointed by the General Court, subject in this as in all other matters to the governor’s approval; and, as will be seen later, this practice had its influence on the other colonies.¹ In Virginia the governor’s patronage, according to an account published in 1727, was very extensive, including the appointment not only of all military officers by commission during the governor’s pleasure, but of nearly all civil officers of importance.² In New Hampshire, in 1730, appointments were with very few exceptions in the hands of the governor.³ Anthony Stokes, the writer of a valuable work on the colonial constitution, but a man of distinctly royalist tendencies, laid down the general rule that the governor had the disposal of all offices not specifically retained within the direct control of the crown, and even that vacancies arising in such royal appointments were temporarily filled by him.⁴ There is, however, another side to the question. In South Carolina the patronage of the governor was insignificant, being limited chiefly to the appointment of military officers and justices of the peace, “offices of no profit, and some trouble.”⁵ Such limitations were due partly to encroachments by the assembly and partly to the tendency of the home government to keep in its own hands some of the more important appointments. In addition to the offices connected with the customs and the Indian department, the crown reserved for its own appointment the offices of secretary of the province,

chief-justice, attorney-general, auditor-general, receiver-general, and sometimes that of clerk of the assembly.¹

     In reply to the question which now arises as to the way in which this power vested in the governor was exercised, it must be said that much of it was corruptly used. Maryland furnishes a glaring example of a regular traffic in offices, though for this practice the proprietor and not the governor was chiefly to blame.² In South Carolina a similar corrupt use of patronage was charged against one of the acting governors, of whom it was said that with him four hundred pounds would make a provost marshall.³ Some governors, apparently, were inclined to provide for their families out of this colonial patronage, while others used it to extend their influence and to promote the passage of measures in which they were interested.⁴ An

illustration of this latter use of the power is suggested by the complaint of an eminent contemporary authority, to the effect that the governor, by the diminution of his patronage, was left without means of stopping the mouths of demagogues.¹ Again, Governor Dobbs of North Carolina revenged himself on the leader of the opposition in the assembly by depriving the gentleman of all his offices;² and Governor Morris of New Jersey appointed to a judgeship the late speaker of the assembly, “who had been as serviceable as he could.”³ This question of the use of patronage will occur again when the relation of the governor to the assembly is considered.

     It was inevitable that such abuse of power should lead to efforts on the part of the assembly to restrict its exercise. The first step taken was the imposition of certain qualifications for appointment, a provision which was aimed particularly at the practice of appointing non-residents to colonial offices. An early statute of New Jersey directed that none but resident freeholders should be appointed to offices, civil or military, within the province.⁴ A similar residential qualification for offices in the colony was fixed by the Maryland assembly in 1704.⁵ In 1705 Virginia passed more thoroughgoing acts governing the appointment of sheriffs, declaring that a candidate for that office must be a justice of the peace, and that he must have resided in the province at least three years.⁶ Another illustration of popular distrust of the appointing power is to be found in the fact that numerous efforts were made to

regulate the tenure of certain offices in the gift of the governor. A Maryland act of 1662, for example, provided for the annual appointment of sheriffs, with the limitation that no person should fill the office for two successive terms; and later acts of the same province fixed a tenure first of two and then of three years.¹ Similar acts were passed in North Carolina, New Jersey, and Delaware.²

     Occasionally still more serious limitations were laid upon the governor’s right of nomination. A Maryland law of 1662, for example, enacted that the commissioners of the county courts should annually present to the proprietor or the governor the names of three persons who had not been sheriffs during the previous year, from which the governor was to choose one. The act was temporary, however, and the restriction was abandoned.³ Elsewhere the attempt met with better success. A Virginia act of 1705 provided that the county courts should annually present to the governor the names of three persons as candidates for the office of sheriff, one of whom the governor was required to appoint.⁴ In Pennsylvania the people had from the beginning a similar share in the nomination of sheriffs and coroners.⁵

     The assembly had, furthermore, an indirect and somewhat questionable method of controlling appointments through its power over the purse. Indeed, it was a common practice of the colonial assemblies to withhold altogether the salaries of judges whose appointment they disapproved. In New York, salaries were granted annually and specifically by name to the person then holding the office; the governors claimed, and

apparently with reason, that this was done for the purpose of controlling appointments.¹

     Thus in almost all the colonies the appointing power was subject to important limitations imposed by colonial statutes. Not content with these checks, however, the assemblies entered upon a more radical course of action: from measures restricting the exercise of the appointing power, they went on to wrest from the governor and to take into their own hands the actual power of appointment itself. This policy of the assemblies, and the long and bitter conflicts to which it gave rise, may best be studied after a consideration of the governor’s relations with the assembly.²

     In the early part of the colonial era the financial powers of the governor had, as has been seen, been very extensive. The introduction of representative assemblies, however, gradually deprived him of these abnormal powers, rendering him dependent upon the assembly for supplies. Naturally, the legislatures of those days were not inclined to grant any larger supplies than they considered strictly necessary for the support of the government; and, furthermore, the body which granted money began to claim the right of determining how that money should be spent. Hence the financial powers of the governor became very much reduced. There were, however, two important functions of this class which continued to hold their place in the royal commission and instructions, namely, the regulation of salaries and fees, and the issue of warrants for the expenditure of money.

     The royal instructions directed the governor, with the advice and consent of the council, to regulate all salaries and fees of provincial officers.³

     Of these two functions the regulation of salaries may first be considered. It is clear that when, as was usually the case, official salaries were paid by special grants of the assembly,

their amounts must of necessity have been determined by the same authority. In Virginia, however, where a considerable portion of the provincial establishment was provided for by a permanent fund settled by the assembly upon the crown, not only was the governor directed to regulate the salaries of officers, but he had the power to do so.¹ In New York there was a spirited contest over the question. In that colony, in the early part of the last century, it was customary, in granting supplies, to pass at the same time resolutions fixing the salaries of the various officials. Governor William Burnet, who held office in 1720, at first issued his warrants in accordance with these resolutions, though six years later he refused to obey the resolves of the assembly. His successor, Montgomerie, however, seems practically to have yielded the point to the assembly, which by 1729 had completely gained its end.² Salaries were thenceforth regularly fixed by annual acts of appropriation, and the regulation of official salaries thus passed entirely out of the governor’s hands.³

     The question as to the regulation of fees is more difficult. It is clear that the governor’s prerogative in this matter was not exclusive, inasmuch as acts of assembly for the regulation of officers’ fees begin early and are numerous. In Maryland a law was passed, in 1676, providing that no officer mentioned in the act should take other fees than those specified;⁴ and from 1699 to 1763 a large number of similar laws are recorded.⁵ Virginia enacted a law regulating fees as early as 1699.⁶ Several such acts were passed in North Carolina; indeed, in 1736, Governor Johnston himself recommended the regulation of fees by the legislature, and some

years later a law was finally agreed upon.¹ Johnston’s successor objected to this measure on the ground that it was inconsistent with that article of the instructions which authorized the governor to regulate fees; but the Board of Trade decided that such legislation was not inconsistent with the instructions.² Without adding to this list of acts passed by the assemblies for the regulation of official fees, it may be said that the practice was general.³

     It is equally clear, however, that fees were frequently settled by the governor and council without the intervention of the assembly. In some of the colonies there were no acts regulating fees until a very late date, and consequently there was room for action by the governor, who seems not to have been slow to exercise his power. New Jersey, for example, furnishes a considerable list of ordinances issued by governors for the regulation of fees, beginning with one issued by the first royal governor and continuing to the time of Governor Belcher, who assumed the office in 1747.⁴ Other cases may be found in the records of New Hampshire, New York, Maryland, and Virginia.⁵ Popular feeling, however, was so strongly against the practice that the assembly of New Jersey, in its remonstrance against Lord Cornbury, declared that it considered the

settling of fees otherwise than by a legislative act to be a great grievance and repugnant to Magna Charta;¹ and a similar position was taken by the assemblies of several other colonies.²

     The attitude of the home government in regard to the question seems not to have been consistent throughout. In 1708, after the remonstrance of the New Jersey assembly against the conduct of Lord Cornbury, the Board of Trade declared its opinion “that no fee is lawful, unless it be Warranted by Prescription, or Erected by the Legislature”;³ a but it is doubtful just how much is meant by the phrase “warranted by prescription.” In the next year the act of assembly regulating fees was disallowed, and the new governor, Hunter, was ordered, with the advice of the council, to establish fees “upon a reasonable footing.” This he did by ordinance.⁴ In New Hampshire, where by 1730 officers’ fees were fixed by law, the governor was directed by the home government to see that no fees were taken in the province, “but what are according to law.”⁵ A South Carolina law regulating fees was condemned by the home government, but apparently on the ground that fees were unduly reduced.⁶ In 1757, the Board of Trade instructed Governor Dobbs of North Carolina that acts of assembly regulating fees were not inconsistent with the royal instructions, but recognized also a concurrent right of the governor and council.⁷

     Apart from the question of strict right, it may then be said that, although the royal instructions placed in the governor’s hands the regulation of official fees, the function came to be exercised mainly by the assemblies. Some governors, it is

true, still used their right to a limited extent; but fees were for the most part regulated by statutes that provided penalties for the exaction of other or larger amounts than those specified.

     The other important financial function expressly vested in the governor by his instructions was the general oversight of public expenditures. To this end, it was ordered that all money raised should be expended only by warrant of the governor, with the advice and consent of the council. The exercise of this power was checked on two sides: the instructions provided, in the first place, that all accounts should be sent to the home government; and, in the second place, that the assembly should be allowed to inspect the accounts of money appropriated by law. The latter provision was probably the more effective safeguard.¹

     The real extent and importance of this power conferred on the governor can be determined only by an examination of the financial methods prevalent in the different colonies. The important question is, of course, whether the requirement of the governor’s warrant was merely formal, perhaps designed to check expenditures by other officers, or whether it was meant that the governor should have a real voice. At first, before the practice of making minutely exact appropriations became general, the governor and council seem actually to have possessed considerable discretion in the disposition of money.² The assembly at that time appears hardly to have realized its power, —a conclusion suggested by the fact that the New Jersey militia act of 1704 was criticised by the Board of Trade as giving the governor too much discretion in the expenditure of certain funds created by the act.³ This earlier confidence

in the judgment and integrity of governors soon passed away, however, as it became evident that many of them were undoubtedly corrupt. In evidence of the lack of principle among them, reference has already been made to an official report on the condition of the plantations. Governor Cornbury of New York was a particularly notorious offender; and it is practically certain that such cases as his had much to do with the distinctly different policy followed by the assemblies of the eighteenth century. Indeed, this doubt as to the integrity of the executive was expressly stated in the official proceedings of the legislature of New York as a reason why means should be taken to prevent corrupt expenditure.¹ The natural tendency of all legislative bodies to define appropriations closely probably worked to the same end. At any rate, the result is perfectly clear: a glance at the statute books of almost any colony will show that, by the close of the colonial era, the general rule consisted in making detailed appropriations for short periods of time.²

     In the making of these appropriations the governor had a gradually decreasing influence. He had himself only a right of veto upon appropriation bills as a whole; but the council, as the upper house of the assembly, afforded to a certain extent a representation of the policy of the executive. The lower house, however, soon came to resent the interference of the council in financial matters, and a jealousy sprang up, of which an early illustration is to be found in the Virginia House of Burgesses. This body, in 1666, in reply to the governor’s request that certain members of the council should coöperate with the burgesses in making up the public levy, asserted its right to “lay the levy in the house,” promising that bills should then be presented to the governor for his assent or dissent.³ In 1704 and 1705 the New York council

returned with amendments supply bills sent up by the House of Representatives; whereupon the House resolved that it was “inconvenient” to allow the council to amend money bills, and returned the bills, having paid no attention to the amendments.¹ The Board of Trade vigorously opposed this action of the assembly; but the House stood firm. In 1711 the controversy was renewed with the same result. Again in 1750 and 1754 the House refused to admit amendments by the council, and finally carried its point. Thereafter money bills seem to have been passed without interference from the council in the form of-amendments.²

     In spite of the opposition of the home government, which never looked favorably upon the pretensions of the assemblies, the same policy was followed with more or less consistency in the other colonies.³ When the question was raised in New Jersey in 1740, the Board of Trade declared that the council had an undoubted right to amend money bills; but such opposition from a distant authority could hardly effect much against a local representative body which held the purse-strings in its hands, and consequently the New Jersey House of Representatives continued to deny to the council the right of amending money bills.⁴ In this matter, as in many others, the colonial assemblies showed that they regarded themselves as inheritors of the rights and privileges of the House of Commons.

     It may easily be seen that the financial functions of the

governor were widely different from those of an executive intrusted with the preparation of the budget. He might simply recommend in general terms such appropriations as he desired, without having any part in the actual work of legislation. Indeed, the conditions that have just been described generally left the governor and council in the position of a mere accounting board, to check expenditures made in accordance with appropriations of the legislature.¹ Moreover, not content with this restriction of the governor’s powers, the assembly went on to more radical measures, finally placing the actual administration of the finances in the hands of its own officers. The consideration of these measures will be taken up in connection with the study of the gradual assumption of executive functions by the assembly, either for itself or for its appointees.²

     Certain minor functions intrusted to the governor may now be briefly considered. First and perhaps most important of these was the pardoning power, a common prerogative of the executive. In the English system the right of pardon belonged to the king, on the theory that criminal offences were offences against the crown; “for,” says Blackstone, “it is reasonable that he only who is injured should have the power of forgiving.”³ This power, within certain limits, passed naturally to

the governors, who represented the crown in the colonies. The proprietary charters of Maryland and Pennsylvania each conferred the right of pardon upon the proprietor, —the Maryland charter for all offences against the laws of the province, the Pennsylvania charter for all except cases of treason and wilful murder.¹ The royal commissions and instructions conferred the power upon the governor, with the same restrictions as those imposed by the Pennsylvania charter, granting him in those excepted cases the right of reprieve until the royal pleasure should be made known. He was also authorized to remit fines and forfeitures not exceeding ten pounds. This right of pardon was granted to him to be exercised independently, without reference to the concurrent action of the council.²

     The rule just stated applies to all of the colonies, with the possible exceptions of Pennsylvania and of Maryland. In Pennsylvania the governor seems to have asked the advice of the council with reference to pardons, though the exact question of right is not clear.³ The first recorded Maryland commission, that to Leonard Calvert in 1637, gave the governor the right of pardon, except for high treason;⁴ the commission to Charles Calvert in 1666 gave him indefinitely the full powers of the proprietor under the charter;⁵ during the period when Maryland was a royal province, the pardoning power was granted in the same terms as in the other provinces;⁶ and it seems probable, on the whole, that in this as in other matters the practice of the royal government was continued after the return to the proprietary constitution.

     The general, almost universal rule, then, was that the governor

exercised the pardoning power except in cases of treason and wilful murder; that he had the power of reprieve in those cases;, and, finally, that his action was independent, not requiring the concurrence of the governor and council.

     Other minor functions of the governor may be dismissed very briefly. The governor was the keeper of the public seal of the province, required in the more important state processes.¹ In many of the royal provinces he was authorized, with the advice of the council, to grant lands, reserving such quit-rents as seemed to him reasonable.² An extended consideration of this latter subject would bring up all the questions of land administration in the colonies, and is hardly in place here. It may, however, be noted that this power was especially liable to abuse. The governors of New York, in particular, were charged with corrupt management of the royal lands, on the ground that they granted them away for low quit-rents in return for certain arrangements by which they were to receive a share in the profits of the transactions.³

     The right to issue charters of incorporation, including charters to towns, furnishes another interesting illustration of the governor’s position as the representative of the crown. The king had the right to issue charters of incorporation;⁴ hence in the provincial governments the governor was naturally invested with the same authority, though towns and other organizations were also incorporated by act of assembly.⁵

Another prerogative was that of establishing markets, fairs, ports, and havens. The right was given to the governor by his commission,¹ and there are some illustrations of its exercise by the governor and council;² but here again the assembly sometimes interposed its action.³

     The earlier royal governors possessed another power, which, if not always effective, at least involved an important principle. The royal instructions for a number of years immediately before and immediately after the beginning of the eighteenth century contained clauses authorizing the governor to exercise a sort of censorship of the press, that is, providing that no press was to be set up and no book or other matter printed without the governor’s license.⁴ This censorship was for some time actually enforced in Massachusetts, but finally broke down during the administration of Governor Shute. In 1719-1720 Shute attempted first to prevent and then to punish the publication of an attack by the House of Representatives upon the surveyor of the woods. The attorney-general and the council, however, declined to take any responsibility in the matter, asserting that there was no ground on which to support a prosecution; whereupon the governor complained to the Board of Trade, which, as Chalmers says, “observed the most prudent silence.”⁵ In 1721, Shute recommended a measure to punish the authors of factious and seditious papers. The House refused to take such action, however, resolving that “to suffer no books to be printed without license from the governor will be attended with innumerable inconveniences and danger.”⁶ “The last instance of an attempt to enforce

the licensing of the press in Massachusetts” occurred in 1723, and the prosecution then failed. The home government seems finally to have given up the obnoxious provision, omitting it altogether in the later instructions.¹

     The provincial governor represented the crown also in certain ecclesiastical privileges and functions. The English king was the head and governor of the English church, though, as Blackstone says with some naïveté, the reasons on which this prerogative was founded were reasons rather of divinity than of law. By virtue of this position the king exercised a certain control over the ecclesiastical assemblies of the realm; his assent was necessary to the validity of church canons; and he had the right of nomination to bishoprics and some other preferments. He was, in short, the ultimate resort in all ecclesiastical causes.²

     The subject of ecclesiastical jurisdiction in the colonies is by no means free from difficulties. According to the royal commission issued to the Bishop of London in 1728, the colonies had not been subject to any ecclesiastical jurisdiction other than that of the king himself, as the supreme governor of the church of England.³ On the other hand, the royal instructions to governors of New York in 1686 and 1690 expressly refer to the ecclesiastical jurisdiction first of the Archbishop of Canterbury and then of the Bishop of London. At any rate, three important privileges were reserved to the governor by the commission and instructions: these were the rights of collation to benefices, granting marriage licenses, and probate of wills.⁴ The royal commission to Bishop Gibson in 1728 gave him a general spiritual jurisdiction over the colonial churches, and authorized him to appoint commissaries

in the colonies to act in his name.¹ The right of collation to benefices, however, remained as before in the governor’s hands, together with the granting of marriage licenses and the probate of wills.²

     Besides attending to these specific duties, the governor was expected to exercise a general oversight of the church in the province. He was required to see that “God Almighty be devoutly and duly served” throughout his government, and that the liturgy and other forms of the church of England were regularly observed. He was in general to support the Bishop of London in the exercise of his spiritual jurisdiction, and in particular to induct no ministers who were not duly certified by the bishop. When ministers proved unfit for their duties, the governor was to use the best means for securing their removal.³ In practice, this division of functions between the governor on the one side and the Bishop of London and his commissaries on the other, did not always work as smoothly as might have been wished. A classic illustration is the case of Commissary Blair of Virginia, who was engaged in constant altercations with Governors Andros and Nicholson of that province, the latter of whom in particular was charged with having seriously encroached upon the prerogative of the Bishop of London.⁴

     The whole theory of the ecclesiastical authority of the governor and the Bishop of London was greatly disturbed by the action of the colonists themselves through their assemblies. In the Puritan colonies of New England, in Pennsylvania, Delaware, and New Jersey, the church of England had no legal recognition as an established churche.⁵ In New York a

general act was passed for the establishment of six Protestant ministers; but, though it contained no distinct reference to the church of England, yet under its provisions Episcopal churches were actually supported by public taxation.¹ In the Carolinas the church of England was in theory the established church, and from time to time legal provisions were made for its support. This support, however, was very uncertain, especially in North Carolina, and there was often no security that the ministers and vestrymen would be bonâ fide adherents to the established order of the church of England.²

     Where there was an establishment, the governor’s prerogative suffered through various statutory provisions enacted in the interest of the vestries. Virginia acts of 1642 and 1662 gave the parishes themselves the right of presentation, and called upon the governor to induct ministers so presented.³ The royal attorney-general ruled that this right of presentation lapsed after six months, and that the governor then had the right to collate.⁴ As a matter of fact, however, ministers were commonly not inducted at all, but were engaged from year to year by the vestries, upon which they became almost wholly dependent. Indeed, the neglect of Governor Nicholson to secure proper presentation and induction of clergymen formed one of the most serious charges made against him by Commissary Blair.⁵ In 1748 the assembly went a step farther, by passing an act which declared expressly that the vestries had the right of presentation for twelve months after a vacancy had occurred, a provision which the Bishop of London

interpreted as taking away from the crown the patronage of all livings and giving it to the vestries.¹

     The situation in the Carolinas was less satisfactory than that in Virginia. In South Carolina the church act of 1706 provided that ministers should be chosen by a majority of the inhabitants of the several parishes “that are of the Religion of the Church of England”; and the practice of election seems to have been continued down to the revolutionary era.² In North Carolina the act of 1715 empowered the churchwardens and vestry to procure ministers; and there were various subsequent acts, which were disallowed by the crown because of encroachments upon the authority of the governor. Finally in 1765 an act was passed which was silent as to the right of presentation, leaving it, according to the interpretation of the Bishop of London, “in the crown to be exercised by the Governor by virtue of his Patent from the King.”³

     Nevertheless, the governor’s ecclesiastical functions were by no means purely nominal. In Maryland the church establishment act of 1702 expressly provided for the maintenance of ministers, who were to be “presented, inducted or appointed” by the governor;⁴ and the right of presentation seems to have been actually exercised later by the proprietor or the governor.⁵ Furthermore, in North Carolina the governor and council had by statute the right to suspend ministers for improper conduct; and, in Virginia and Maryland at least, they acted as a species of ecclesiastical courts It may fairly be said that, although the authority of the governor almost nowhere in practice reached the standard set by the royal commission and instructions, it was yet possible for him in many

cases to exert a considerable influence for better or for worse upon the growth of the church within his province.¹

     In addition to all these specific powers enumerated in the commission and instructions, the governor was authorized to take provisional action in matters not covered by his commission, though in such cases the consent of the council must always be had, and immediate notice must be given to the home government. He was, however, specifically forbidden to declare war, except against the Indians in emergencies.² This provisional authority seems to be quite inadequately defined; but, according to a judicial interpretation, it applied only to cases in regard to which the instructions, as well as the commission, were silent, and could therefore not stand against any express directions of the instructions.³ It was simply a provision for unforeseen contingencies, guarded from possible abuse by the requirement of immediate notice to the home government.